Full Judgment
K.K. Lahoti, J.
1. The case of the petitioner, as stated in the petition, is that the petitioner was engaged as Labourer by the respondent on 25-7-1975. Thereafter in the year 1978, the petitioner was promoted as Clerk Grade I and since then the petitioner is working at Bijuri, Sub-Area Somna Colliery, District Anuppur. In the service record, the date of birth is recorded as 30th January, 1948 which reflects from the monthly pay slip for the month of the July, 2004 of the petitioner. In column No. 1 of the pay slip, the date of birth is shown 30th January, 1948 and the date of retirement is shown as 29-1-2008. But the respondent has issued the order dated 25/30-1-2005 (Annexure P-4) by which the petitioner has been directed to be retired with effect from 31 -1-2005, while the petitioner's date of retirement is 29th January, 2008. In these circumstances, the petitioner can not be retired on the aforesaid date. The petitioner is matriculate from Board of High School and Intermediate Education, Uttar Pradesh. In the High School Examination 1965 certificate (Annexure P-3), date of birth of the petitioner has been certified as 30-1-1948. On these grounds, the petitioner has challenged order dated 25/30th January, 2005 (Annexure P-4).
2. The respondent has filed the reply in which it is submitted that the petitioner at the time of appointment, as Labourer, the date of birth of the petitioner in the statutory registers was recorded as 25-7-1945. The register is maintained under Section 48 of the Mines Act and Mines Rules, 1952. The petitioner was engaged on 25-7-1975 on which date he shown himself as 30 years old and the date of birth was recorded as 25-7-1945 which is as per declaration made by the petitioner. The petitioner also signed the register as a token of affirmation of the aforesaid facts. A copy of it is on record as Annexure R-1. The petitioner's service record also shows the date of birth of the petitioner as '30 years as on 25-7-1975'. The copy of service register is on record as Annexure R-2. Thereafter in the year 1987, the petitioner has also submitted service excerpts in which the petitioner has stated his date of birth 30 years as on 25-7-1975 which is duly signed by the petitioner. Once the date of birth is duly recorded in the record of the respondent, it can not be changed subsequently. So far as the pay slip is concerned, by mistake the date of birth has been recorded. The school certificate was not produced by the petitioner to the respondent and no importance can be given to Annexure P-3. As per service record and the register maintained by the respondent, the petitioner has been duly retired.
3. The learned Counsel appearing for petitioner in support of his contention has relied upon Annexure P-5, the implementation instruction No. 76 which provides procedure for determination of the age at the time of appointment. He has placed his reliance to Para (A) (i) and (B) (i) of the aforesaid instructions, and submitted that in view of the specific instructions, the petitioner is entitled to continue in the service on the basis of date of birth recorded in the matriculate certificate. He has placed his reliance to a decision of Single Bench in Satyadev Jaiswara v. Western Coal Fields Limited and Ors., in W.P. No. 4591/2000, decided on 29-11-2001 and submitted that this petition may be allowed.
4. The learned Counsel for respondent in support of his defence relied upon to the Apex Court judgments in Secretary & Commissioner, Home Department v. R. Kirubakaran, : (1994)ILLJ673SC , State of Orissa and Ors. v. Shri R. Patnaik, 1997 II LLJ 206; G.M. Bharat Coking Coal Ltd., W.B. v. Shib Kumar Dushad, AIR 2001 SC 72; State of U.P. and Ors. v. Gulaichi (Smt.), : AIR 2003 SC4209 ; State of Punjab and Ors. v. S.C. Chadha, : (2004)3SCC394 and Girish Nath v. Union of India and Ors., 2005 (1) MPLJ 233 and submitted that at the fag end of service career, the date of birth can not be changed.
5. To appreciate contentions of the parties, firstly, the relevant instructions (Annexure P-5) having binding effect between the parties, may be seen which reads thus :--
(A) Determination of the age at the time of appointment. (i) Matriculates :
In the case of appointees who have passes Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances...
(B) Review/determination of date of birth in respect of existing employees.(i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Board/Institutions prior to the date of employment.....'
The aforesaid instructions specifically provides that it an employee who at the time of joining service is matriculate, then the date of birth as appearing in the matriculation certificate shall be treated as date of birth and the aforesaid certificate shall be treated as correct. The instruction also provides that in the case of the existing employees, Matriculation Certificates or Higher Secondary Certificate issued by the recognized Board should be treated as correct, provided it was issued by the said Board prior to the date of employment.
6. In this case, the petitioner has filed his matriculation certificate (Annexure P-3) which was issued long back on 30-12-1965 which certifies the date of birth of the petitioner as 30-1-1948. Thereafter the petitioner submitted his service details as Annexure R-2A to the respondent. This document was submitted on 24th August, 1987 and in Para 7 of the aforesaid document the educational qualification has been shown as Intermediate. Para 6, sub-para (i) of Annexure R-2A is the column of date of birth in which it is apparent that the date of birth which was written as '30-1 -48' which was subsequently interpolated and in place of month and year, '30 years' have been written and thereafter some person has written date as '25-7-75' and '25-7-45' which are not attested by any of the persons. This fact shows that in the year 1987 itself, the petitioner intimated his correct date of birth as 30th January, 1948 and had shown educational qualification as intermediate. The interpolation in Para 6 of Annexure R-2A is apparent. There was no question of mentioning 30 years in the year 1987 when the form was filled. It was filled on 20-8-87, the petitioner in case of his date of birth in 1945, ought to have given his age as 42 years. There was no substance in giving an estimated age of 30 years on the aforesaid date when the petitioner was having intermediate qualification and has given correct date of birth to the respondent. There was no question of writing an estimated age of 30 years. It appears that this document was subsequently interpolated, which has not been explained by the respondent as this document is its custody. Apart from this, the respondent has issued pay slip every month to the petitioner in which the date of birth is appearing as 30th January, 1948 and date of retirement as 29-1-2008. The respondent was possessing aforesaid date with it, and has not explained what was the source of the aforesaid information. At the time when the petitioner was engaged as Labourer, though the estimated age was recorded in the register, but at the time when the petitioner was employed in regular service, he furnished respondent his educational qualification and date of birth which was duly recorded and was accepted by the respondent as is apparent from the perusal of Annexure P-1. The explanation of the respondent that it has been wrongly recorded in Annexure P-1 has no substance, in absence of convincing document in this regard.
7. So far as service record of the petitioner is concerned, form B Column 4 of Annexure R-1 shows the age 30 years as on 25-7-1975. What is the date of preparation of this form is not on record. Though it bears the signature of the petitioner. In this case, there are convincing documents on record that the petitioner's date of birth is 30th January, 1948 which is apparent from the perusal of certificate Annexure P-3, Annexure R/2A and the pay slip (Annexure P-1). This is not a case where the petitioner at the fag end of the service career agitated the issue for the correction of the date of birth. The respondent has continuously initiated the petitioner his date of birth by issuing every month pay slip and has also intimated the petitioner the age of superannuation. In aforesaid circumstances, the contention of the respondent that at the fag end of the service career, the petitioner, has agitated issue of date of birth, can not be accepted.
8. The judgments relied upon by the respondents relate to issue where an employee at the fag end of the service career raised issue for the correction of date of birth, in the circumstance, the Apex Court has declined to interfere in the matter, but facts of the present case are entirely different and the judgments relied by the respondent are not applicable on facts in this case. Consequently, this petition is allowed. The order Annexure P-4 intimating the petitioner date of superannuation 31-7-2005 is hereby quashed and respondent is directed to continue the petitioner in service with all consequential benefits till his attaining age of superannuation, i.e., on 29-1-2008 as per rules. The petitioner is also entitled for the cost which is quantified Rs. 2,000/-.